20-001367PL Department Of Agriculture And Consumer Services vs. Willie King Status: Closed Recommended Order on Friday, August 21, 2020.

Summary: Petitioner failed to prove Respondent violated Fla. Admin. Code R. 5E-14.112(2)(b) and the Administrative Complaint should be dismissed.

signs on a structure when the structure was under fumigation ; and, if so,

what penalty should be imposed.

P RELIMINARY S TATEMENT

On February 4, 2020, the Department of Agriculture and Consumer

Services (Department or Petitio n er) filed a one - count Administrative

Complaint against Mr. King , in which it alleged that Mr. King violated rule

5E - 14.112 (2) (b) , by failing to affix warning signs on all external walls of a

structure when the structure was under fumigation . For the alleg ed violation,

the Department sought to impose discipline against Mr. King pursuant to

s ection 482.161, Florida Statutes .

In an Election of Rights form and an Answer to Administr ative Complaint

and Request for Formal Hearing B efore the Division , Responden t timely

disputed the allegations and requested a disputed - fact hearing. The

Department transmitted the matter to DOAH on March 17, 2020 , for the assignment of an administrative law judge to conduct a chapter 120 hearing.

The final hearing was held on Jul y 14, 2020, with both parties present.

Petitioner presented the testimony of Paul Rockhill (Mr. Rockhill), an

Environmental Specialist III for the Department’s Bureau of Inspection and

Incident Response . Petitioner’s E xhibits P - 1 through P - 4

1 were admitted into

evidence , without objection. Respondent testified on his own behalf and did

not offer any exhibits.

1 Petitioner’s Exhibit P1 (Chloropicrin (CP) Test , December 3, 2019 ) was previously marked

and referenced on Petitioner’s Proposed Exhibit s List as Exhibit 6; Exhibit P2 (Map of

Condos ) was previously marked and referenced on Petitioner’s Proposed Exhibit s List as

Exhibit 9; Exhibit P 3 (Sign at 216 Henry ) was previously marked and referenced on

Petitioner’s Proposed Exhibit s List as Exhibit 10 ; and Exhibit P4 (Absence of Sign at 220

Henry ) was previously marked and referenced on Petitioner’s Proposed Exhibit s List as

Exhibit 11 .

At the close of the hearing, the parties were advised of a ten - day

timeframe following DOAH’s receipt of the hearing transcript to file proposed

rec ommended orders . A one - volume Transcript of the final hearing was filed

with DOAH on July 24, 2020. The Department submitted an untimely

proposed recommended order on August 5 , 2020, and Mr. King did not file a

proposed recommended order. The Department’ s P r oposed Recommended

O rder was reviewed in preparation of this Recommended O rder .

All references to the Florida Statutes and the Florida Administrative Code

are to the 2019 versions .

F INDINGS OF F ACT

1. Respondent is a special identification cardholder. A special

identification cardholder is a person to whom an identificati on card has been

issued by the D epartment showing that the holder is authorized to perform

fumigation. § 482.021(26), Fla. Stat.

2. The Department is the state agency charged with th e regulation of

special ident ification cardholders. § § 482.151 and 482. 161 , Fla. Stat.

3. On December 3, 2019, Mr. King was the special identification

cardholder responsible for the fumigation of 216 and 220 Henry Street, Punta

Gorda, Florida .

4. 216 and 220 Henry Street are the addresses given to a rectangle - like

building with two units , commonly known as a duplex. T he units are side - by -

side, sharing a common wall, with two separate entrances.

5. Mr. King conducted a tent fumigation of the entire buildi ng. I n

preparation to do so, he placed mandatory warning signs on all of the

building’s operative doors and windows, including sliding glass doors , for

both duplex units . The Department did not dispute Mr. King’s credible

testimony on this point.

6. After placing warning signs on all doors and windows, Mr. King placed

a tent over the entire building which includes both 216 and 220 Henry Street.

After tenting the building , he placed one warning sign on all four sides of the

tented building: one on the front of the tent , one on the back of the tent, on e

on the left side of the tent , and one on the right side of the tent .

7. After affixing warning signs to the tented building , Mr. King left. He

did not participate in the removal of the signs or tent.

8. On Dec ember 3, 2019, several hours after Mr. King affixed the warning

signs, Mr. Rockhill conducted an inspection of the tented duplex building . As

part of his inspection, he conducted a chloropicrin test. Chloropicrin testing is

used to determine the presence o f ch loropicrin , which is a warning agent

emitted into the air during a str u ctural fumigation.

9. The chloropicrin test returned positive, which indicated that the duplex

building at 216 and 220 Henry Street was being fumigated on that day .

10. Mr. Rockhill testified that as part of his inspection, he walked around

the perimeter of the tented structure to ensure that it was secure, that there

was no apparent reason for a gas leak , and that all warning signs were

affixed to each exterior wall of the structure .

11. Mr. Rockhill testified that during his inspection he saw one sign on the

back of the tented structure, one sign on the left side of the tented structure,

one sign on the right side of the tented structure, and one sign on the front of

the tented stru cture. The sign on the front of the tented structure was located

on the part of the tent that covered the front of the unit designated as 216

Henry Street. There was no t a second sign present on the front of the part of

the tent covering the front of the u nit designated as 220 Henry Street.

12. Mr. Rockhill testified that he expected, pursuant to rule 5E -

14.112 (2)(b) , that there would be one sign on each wall of the exterior wall of the structure. Mr. Rockhill expected t wo signs to be affixed on the front o f the

tented structure, with one sign in front of the duplex unit designated as 216

Henry Street and another in front of the duplex unit designated as 220 Henry

Street.

C ONCLUSIONS OF L AW

13. DOAH has jurisdiction over the parties and the subject matter o f this

cau se pursuant to sections 120.569 and 120.57( 1) , Florida Statutes.

14 . The Administrative Complaint sets forth allegations regarding the

i nspection described above, for which the Department charges Respondent

with a violation of rule 5E - 14.112(2)( b), and seeks to impose discipline

against Respondent ’ s license .

15. A proceeding to suspend, revoke, or impose other discipline upon a

license is penal in nature. State ex rel. Vining v. Fla. Real Estate Comm’ n ,

281 So. 2d 487, 491 (Fla. 1973). Petitioner therefore bears the burden of

proving the charges against Respondent by clear and convincing evidence .

Fox v. Dep’t of Health , 994 So. 2d 416, 418 (Fla. 1st DCA 2008) (citing Dep ’ t of

Banking & Fin. v. Osborne Stern & Co. , 670 So. 2d 932 (Fla. 1996)).

16 . The clear and convincing standard of proof has been described by the

Florida Supreme Court as follows:

Clear and convincing evidence requires that

evidence must be found to be cre d ible; the facts to

which the wit n esses testify must be distinctly

remembe red; the testimony must be precise and

explicit a nd the witnesses must be lacking in

conf usion as to the facts in issue. The evidence

m ust be of such weight that it produces in the mind

of the trier of fact a firm belief o r conviction,

without hesitancy, a s to the tr u th of the a llegations

sought to be established.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994 ) (quoting Slomowitz v. Walker ,

429 So. 2d 797, 800 (Fla. 4th DCA 1983)); see also In re Henson , 913 So. 2d

579, 590 (Fla. 2005). “Although this standard of proof may be met where the

evidence is in conflict, … it seems to preclude evidence that is ambiguous.”

Westinghouse Elec. Corp. v. Shuler Bros. , 590 So. 2d 986, 988 (Fla. 1st DCA

1991).

17 . Disciplinary statutes and rules “must be construed strictly, in favor of

the one against whom the penalty would be imposed.” Griffis v. Fish &

Wildlife Conser. Comm’n , 57 So. 3d 929, 931 (Fla. 1st DCA 2011); Munch v.

Dep’t of Prof’l Reg., Div. of Real Estate , 592 So. 2d 1136, 1143 (Fla. 1st DCA

1992); McClung v. Cri m. Just. Stds. & Training Comm’n , 458 So. 2d 887, 888

(Fla. 5th DCA 1984) (“No conduct is to be regarded as included within a penal

statute that is not reasonably prescribed by it; if there are any ambiguities

included, they must be construed in favor of t he licensee.” ) (citing State v.

Pattishall , 126 So. 147 (Fla. 1930)).

18. The grounds proven in support of the Department ’ s assertion that

disciplinary action should be taken against Mr. King must be those

specifically alleged in the Administrative Complai nt. See, e.g. , Trevisani v.

Dep’t of Health , 908 So. 2d 1108 (Fla. 1st DCA 2005); Cottrill v. Dep’t of Ins. ,

685 So. 2d 1371 (Fla. 1st DCA 1996); Kinney v. Dep’t of State, 501 So. 2d 129 (Fla. 5th DCA 1987). Disciplinary action must be predicated solely on

violations both pleaded in the Administrative Complaint and proven at

hearing. Due process prohibits the Department from taking disciplinary

action based on matters not specifically alleged or charges not specifically made in the Administrative Complaint. Cottrill , 685 So. 2d at 1372.

19. The factual allegations in the Administrative Complaint, giving rise to

the one - count charge, were as follows:

The department inspector observed that all the

external walls of the structure located at 220 W

Henry St., wer e missing warning signs; while the

structure at 216 W Henry St.’s external walls were all posted with warning signs.

20. The single charged violation, in Count 1 of the Administrative

Complaint, is set forth in its entirety as follows:

Mr. Willie King, J D100146 is in violation of Section

5E - 14.112(2)(b), F.A.C., when on December 3, 2019

a multi - residential property located at 216 - 220 W

Henry St., Punta Gorda, FL under fumigation by

Brantley Termite and Pest Control Services, JB5563, all the external walls of the structure

located at 220 W Henry St., were missing warning

signs; while the structure at 216 W Henry St.’s

external walls were all posted with warning signs.

21. For the charged violation, the Department seeks to impose discipline

against Mr. King pursuant to section 482.161(1), which authorizes the

Department to impose discipline against a special identification cardholder for violating any provision of chapter 482 or any rule of the Department

adopted pursuant to chapter 482.

22. The rule alleged to be violated, rule 5E - 14.112(2)(b), provides, in

pertinent part:

(2) Prior to the application of fumigant(s), suitable

warning signs of stiff, weather - proof material must

be securely affixed and conspicuously posted as

follows:

* * *

(b) In te nt fumigation operations and also including

commodity fumigations : at least one (1) warning

sign posted at or on all doors and entrances to the

structure or enclosed space and at least one (1)

warning sign on all sides of the outside of the tents

or sealin g covers of the structure , enclosed space or

commodities being fumigated [.] (emphasis added).

23. The facts alleged, on which a violation of this rule is charged in the

Administrative Complaint, were that “ all the external walls of the structure

located at 220 W Henry St., were missing warning signs; while the structure

at 216 W Henry St.’s external walls were all posted with warning signs. ”

24. The Administrative Complaint does not allege a violation of the first

part of rule 5E - 14.112(2)(b), requiring at least one warning sign posted at or

on all doors and entrances to the structure. The unrefuted credible evidence

established that Mr. King complied with the first part of rule 5E - 14.112(2)(b)

by posting warning signs on all doors and entrances to both duplex units in

the building.

25. The sole issue, then, is whether the facts alleged in the Administrative

Complaint and proven at hearing establish a violation of the second part of

rule 5E - 14.112(2)(b), requiring that there be at least one warning sign o n all

sides of the outside of the tent covering the structure being fumigated.

26. There are two fundament al problems with the Department’ s charge.

First, the Administrative Complaint did not allege that there was not at least one warning sign “on all si des of the outside of the tent” that covered the

duplex building. The allegation in the Administrative Complaint was that

warning signs were not posted on “all external walls.” Contrary to the charge in the Administrative Complaint, rule 5E - 14.112(2)(b) do es not impose a

requirement that “external walls” be posted with warning signs. There is a plain disconnect between the factual allegations and the requirements of the rule.

27. To attempt to address this pleading flaw in the Administrative

Complaint, it was necessary for the Department to argue in its proposed

recommended order that the external walls should be deemed equivalent to

the outside sides of the tent. But external walls are not outside sides of the

tent. The burden is on the Department to both specifically allege and then

prove facts sufficient to show a violation of the rule charged. The Department

failed to meets its burden in this regard.

28. Even if the Administrative Complaint had alleged a failure to post

warning signs on all sides of th e outside of the tent, the second fundamental

problem with the Department ’ s charge is that it rests on an implicit

assumption that each unit of the duplex building is a separate structure. But

the Department failed to note, and plainly did not consider, th at the term

“structure” is defined in section 482.021(27) as follows:

“Structure” means:

(a) Any type of edifice or building , together with

the land thereunder, the contents thereof, and any patio or terrace thereof;

(b) That portion of land upon which wo rk has

commenced for the erection of an edifice or building; or

(c) A railway car, motor vehicle, trailer, barge,

boat, ship, aircraft, wharf, dock, warehouse, or

common carrier. (emphasis added).

29. The two units of the duplex are assigned different ad dresses — 216 and

220 Henry Street — because they are separate residential units, but they are

housed in a single building. The only fair reading of the plain language of the

statute is that the duplex building was one structure. The Legislature could

have def ined structure to mean each separate unit in a duplex, but it did not.

Most certainly, in the context of this penal action, a proper narrow interpretation of the statute that is most favorable to Respondent requires

rejection of the Department ’s position t hat each duplex unit in the same

building should be considered a separate structure.

30. The narrow or plain meaning interpretation of the statutory definition

of structure to mean a single building is not only required in this penal proceeding, but it als o makes sense under the facts of this case. Here, the

entirety of the single duplex building housing two units was covered by a tent

for fumigation. Consistent with rule 5E - 14.112(2)(b), Mr. King affixed a sign

on all four sides of the outside of the tent that covered the structure.

Mr. Rockhill confirmed this; he identified four warning signs, one on the

outside of each side — front, back, left, and right — of the tent covering the

building.

31. The Department’ s argument that Mr. King violated rule 5E -

14.112( 2)(b) by failing to place two warning signs on the outside front of the

tent covering the structure, one in front of each duplex unit, is contrary to the

plain language of the rule and contrary to the statutory definition of

structure.

32. T wo residential duplex units with a dividing wall between the two

units does not create two separate buildings. The two duplex units are

housed in one building — that is, one structure — and, as such, only one sign

was required to be posted on the front side of the outside o f the tent covering

the single structure, pursuant to rule 5E - 14.112(2)(b).

33. The Department failed to allege or prove a violation of rule 5E -

14.112(2)(b).

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Department of Agriculture and Consumer Services

dismiss the Administrative Complaint .

D ONE A ND E NTERED this 20 th day of A ugust , 2020, in Tallahassee, Leon

County, Florida.

S

J ODI - A NN V. L IVINGSTONE

Administrative Law Judge

Division of Adm inistrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 0 th day of A ugust , 2020 .

C OPIES F URNISHED :

Willie King

2334 Quincy Street South

St. Petersburg, Florida 33711

Lee Damessous, Esquire

Department of Agriculture and Consumer Services

407 South Calhoun Street , Suite 520

Tallahassee, Florida 32399 - 0800

(eServed)

Nicole “Nikki” Fried

Commissioner of Agriculture

Depar t ment of Agriculture and Consumer Services

The Capitol, Plaza Level 10

Tallahassee, Florida 32399 - 0810

(eServed)

Steven Hall, General Counsel Department of Agriculture and Consumer Services

407 South Calhoun Street , Suite 520

Tallahassee, Florida 32399 - 0800

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties have the right to submit written exceptions within 15 days from

the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this

case.